Timely Topics: A Collection of Articles from Literacy Links

Legal & Ethical Issues in Assessment & Placement

by Emily Payne

Although most educators remain untouched by actual or threatened litigation, it is in their best interest to be informed about professional practices that may leave them vulnerable to charges of unethical practice or litigation. When discussing the legal concerns of importance to educators, it is necessary to acknowledge the ethical issues that may, in time, become legal considerations. The intent of this article is to make administrators and instructors aware of potential legal ramifications of program policy and practice regarding student assessment and placement.

"Educators must take the initiative and the time now to analyze any existing or potential problems, whether real or imagined, and try to solve them while they are able to do so under non-adversarial conditions in a court of law." (Collis, 1990, p. 574). Educators must ensure that they use clear, direct language in describing the policies and procedures in effect in programs they represent. For the most part, the procedures used in assessing, placing, and instructing students in adult education and literacy programs are practical, reasonable, and would survive ethical and legal scrutiny, but some policies clearly deserve a closer analysis to assure that policy and practice are clear to students and to ensure that there is no trend of unintended harm. Students who have limited experience with the system, who lack confidence in their ability to advocate for themselves, and who have few personal contacts or informal sources of information about education programs may not understand fully the implications of assessment and placement . They are more typically the subject of literature in K-12 and college publications because those populations are larger, higher profile, and are served by more generously funded programs (or, in the case of college programs, are more expensive to the student consumer) than those served in adult education and literacy programs. However, welfare reform has the potential to place adult education administrators and teachers squarely "in the middle of the fray" between mandated assessment and placement procedures and adult students who may have difficulty understanding the new order. Two recommendations emerge from the assessment and placement policy issue: Assessment methodology must be appropriate for the population and match the goals of the program into which the students will be placed, and the literature describing the process and intent of the assessment and placement must be clear and accessible to the population. It is important to consider that students whose reading comprehension is below average may be significantly at risk of misunderstanding the information about program procedures and requirements.

When most administrators and teachers think of legal issues regarding teaching, they think of the threat of professional malpractice. Based on tort theories of negligence, malpractice hinges on the establishment of a duty of care recognized by law, a failure to follow the standard of care, the causal link between the failure and the injury, and the existence of the injury (Brown & Cannon, 1993). The courts have only recognized malpractice once as a cause of action (in a case of the misplacement of a special education student in the public schools), but it has been claimed by plaintiffs and supported by some commentators (Brown & Cannon, 1993). Adult educators need to realize that "the law evolves, changes, and responds to changing societal demands and expectations" (Barr, 1988, p. 4). From a practical perspective, educators may never be free of the threat of malpractice lawsuits because the nature of our profession requires us to make decisions based on the best information we have at the time. Teachers rely on the reliability and validity of assessment instruments to yield accurate information about a student's academic skills, they make placement decisions based on that information, and they proceed with what they hope is appropriate instruction. If, however, the diagnostic tests are inappropriate for the population, or the advising and placement are inaccurate, or the instruction does not fit the students' needs, the educator's good intentions may result in no education gain and in lost time for the students. Because adult students are a heterogeneous group, the entire assessment and placement process is complicated and vulnerable to error. Administrators and teachers must learn to make informed decisions about assessment instruments, place-ment practices, and current instructional strategies; after that, they must learn to trust their own experience and good judgment about what is best for students. As an example of a common sense strategy, as well as a sound defense measure, teachers must train themselves to chronicle their interactions with students concerning assessment results, placement, instruction, and any subject involving a potentially negative impact on students' futures.

One common reaction to a new awareness of potential legal problems is paranoia. The following suggestions to help avoid or survive litigation are based on awareness of legal issues, documentation of the professional judgment used by educators and administrators, and self-review. No one can prevent being sued, but educators can learn to avoid some of the pitfalls that put them at greatest risk.

• Administrators should develop a good relationship with the attorney who represents the program's district, co-op, or organization. Examine existing assessment and placement policies and procedures and ask for the attorney's feedback on the impact those policies and procedures may have on all students, but specifically on students who are recently targeted under the Americans with Disabilities Act and other categories whose needs may dictate policy or procedural adaptations.
• Get legal advice early in the development of a problem. Don't wait until potential problems become crises; discuss with your attorney ways to document your decisions and actions, types of potential problems that need early intervention and how to initiate that intervention, and whom to ask for information and advice about assessment and placement issues that have the potential to become legal problems for your program.
• Inform yourself of the legal issues by reading current publications on legal and ethical issues in education. Policies and procedures that are ethically sound, carefully analyzed, and follow the best and most current academic practice should be the primary objective of programs.

References

Brown, S.E. & Cannon, K. (1993). Educational malpractice actions: A remedy for what ails our schools: West's Education Law Reports. 78 Ed. Law Rep [643] (Jan. 28, 1993).

Collis, J. (1990). Educational malpractice: Liability of educators, school administrators and school officials. Charlottesville, VA: The Michie Company Law Publishers.

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